338 U.S.

197
69 S.Ct. 197
93 L.Ed. 1902

KOKI HIROTA
v.
GENERAL OF THE ARMY MacARTHUR et al. KENJU
DOHIHARA v. GENERAL OF THE ARMY MacARTHUR et
al. KOICHI KIDO et al. v. GENERAL OF THE ARMY
MacARTHUR et al.
Nos. 239, 240, and 248, Misc.

Argued on Motion to File Petition for Writ of Habeas Corpus Dec. 16, 17,
1948.
Decided Dec. 20, 1948.
Rehearing Denied Jan. 3, 1949.
See 335 U.S. 906, 69 S.Ct. 400.
Messrs. William Logan, Jr., of New York City, David F. Smith, of
Washington, D.C., John G. Brannon, of Kansas City, Mo., and George
Yamaoka and George A. Furness, both of New York City, pro hac vice for
petitioners.
Mr. Philip B. Perlman, Sol. Gen., of Washington, D.C., for respondent.
PER CURIAM.

The petitioners, all residents and citizens of Japan, are being held in custody
pursuant to the judgments of a military tribunal in Japan. Two of the petitioners
have been sentenced to death, the others to terms of imprisonment. They filed
motions in this Court for leave to file petitions for habeas corpus. We set all the
motions for hearing on the question of our power to grant the relief prayed, 335
U.S. 876, 69 S.Ct. 157, and that issue has now neen fully presented and argued.
We are satisfied that the tribunal sentencing these petitioners is not a tribunal of

the United States. The United States and other allied countries conquered and
now occupy and control Japan. General Douglas MacArthur has been selected
and is acting as the Supreme Commander for the Allied Powers. The military t
ibunal sentencing these petitioners has been set up by General MacArthur as the
agent of the Allied Powers.

Under the foregoing circumstances the courts of the United States have no
power or authority to review, to affirm, set aside or annul the judgments and
sentences imposed on these petitioners and for this reason the motions for leave
to file petitions for writs of habeas corpus are denied.

Mr. Justice DOUGLAS concurs in the result for reasons to be stated in an

opinion.

See 338 U.S. 197, 69 S.Ct. 1238.

Mr. Justice MURPHY dissents.

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote
until a later time.

Mr. Justice JACKSON took no part in the final decision on these motions.

Mr. Justice DOUGLAS, concurring.*

10

* These motions were argued December 16 and 17, 1948 and the opinion of the
Court handed down December 20, 1948, 338 U.S. 197, 69 S.Ct. 197. I was not
able within that short time to reduce my views to writing. Hence I concurred in
the result 'for reasons to be stated in an opinion.'

11

These cases present new, important and difficult problems.

12

Petitioners are citizens of Japan. They were all high officials of the Japanese
Government or officers of the Japanese Army during World War II. They are
held in custody pursuant to a judgment of the International Military Tribunal
for the Far East. They were found guilty by that tribunal of various so-called
war crimes against humanity.

13

Petitioners at the time of argument of these cases were confined in Tokyo,

Japan, under the custody of respondent Walker, Commanding General of the

United States Eighth Army who held them pursuant to the orders of respondent
MacArthur, Supreme Commander for the Allied Powers. Other respondents are
the Chief of Staff of the United States Army, the Secretary of the Department
of the Army, and the Secretary of Defense.
14

First. There is an important question of jurisdiction that lies at the threshold of

these cases. Respondents contend that the Court is without power to issue a
writ of habeas corpus in these cases. It is argued that the Court has no original
jurisdiction as defined in Art. III, 2, Cl. 2 of the Constitution,1 since these are
not cases affecting an ambassador, public minister, or consul; nor is a State a
party. And it is urged that appellate jurisdiction is absent (1) becasue military
commissions do not exercise judicial power within the meaning of Art. III, 2
of the Constitution and hence are not agencies whose judgments are subject to
review by the Court; and (2) no court of the United States to which the
potential appellate jurisdiction of this Court extends has jurisdiction over this
cause.

15

It is to the latter contention alone that consideration need be given. I think it is

plain that a District Court of the United States does have jurisdiction to
entertain petitions for habeas corpus to examine into the cause of the restraint
of liberty of the petitioners.

16

The question now presented was expressly reserved in Ahrens v. Clark, 335
U.S. 188, 192, note 4, 68 S.Ct. 1443, 1444, 92 L.Ed. 1898. In that case aliens
detained at Ellis Island sought to challenge by habeas corpus the legality of
their detention in the District Court for the District of Columbia. It was argued
that that court had jurisdiction because the Attorney General who was
responsible for their custody was present there. We rejected that view, holding
that it was the District Court where petitioners were confined that had
jurisdiction to issue the writ. It is now argued that no District Court can act in
these cases because if in one case their jurisdiction under the habeas corpus
statute2 is limited to inquiries into the causes of restraints of liberty of those
confined within the territorial jurisdictions of those courts, it is so limited in any
other.

17

That result, however, does not follow. In Ahrens v. Clark, supra, we were
dealing with the distribution of judicial power among the several District
Courts. There was an explicit legislative history, indicating disapproval of a
practice of moving prisoners from one district to another in order to grant them
the hearings to which they are entitled. We held that the court at the place of
confinement was the court to which application must be made. But it does not
follow that where that place is not within the territorial jurisdiction of any

District Court, judicial power to issue the writ is rendered impotent.

18

Habeas corpus is an historic writ and one of the basic safeguards of personal
liberty. See Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 445, 83 L.Ed.
455. There is no room for niggardly restrictions when questions relating to its
availability are raised. The statutes governing its use must be generously
construed if the great office of the writ is not to be impaired. In Ahrens v.
Clark, supra, denial of a remedy in one District Court was not a denial of a
remedy in all of them. There was a District Court to which those petitioners
could resort. But in these cases there is none if the jurisdiction of the District
Court is in all respects restricted to cases of prisoners who are confined within
their geographical boundaries.

19

Such a holding would have grave and alarming consequences. Today Japanese
war lords appeal to the Court for application of American standards of justice.
Tomorrow or next year an American citizen may stand condemned in Germany
or Japan by a military court or commission.3 If no United States court can
inquire into the lawfulness of his detention, the military have acquired, contrary
to our traditions see Ex part Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; In re
Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499, a new and alarming hold on
us.

20

I cannot agree to such a grave and starting result. It has never been deemed
essential that the prisoner in every case be within the territorial limits of the
district where he seeks relief by way of habeas corpus. In Ex parte Mitsuye
Endo, 323 U.S. 283, 304-306, 65 S.Ct. 208, 219-220, 89 L.Ed. 243, a prisoner
had been removed, pending an appeal, from the district where the petition had
been filed. We held that the District Court might act if there was a respondent
within reach of its process who had custody of the prisoner. The aim of the
statute is the practical administration of justice. The allocation of jurisdiction
among the District Courts, recognized in Ahrens v. Clark, is a problem of
judicial administration not a method of contracting the authority of the courts so
as to delimit their power to issue the historic writ.

21

The place to try the issues of this case is in the district where there is a
respondent who is responsible for the custody of petitioners. That district is
obviously the District of Columbia. That result was reached by the Court of
Appeals for the District of Colubmia in Eisentrager v. Forrestal, D.C.Cir., 174
F.2d 961. It held, in the case of a German national confined in Germany in the
custody of the United States Army, that the court having jurisdiction over those
who have directive power over the jailer outside the United States could issue
the writ. In my view that is the correct result. For we would have to conclude

that the United States Generals who have custody of petitioners are bigger than
our government to hold that the respondent-officials of the War Department
have no control or command over them. That result would raise grave
constitutional questions, as Eisentrager v. Forrestal, supra, suggests.
22

It is therefore clear to me that the District Court of the District of Columbia is

the court to hear these motions. The appropriate course would be to remit the
parties to it, reserving any further questions until the cases come here by
certiorari. But the Court is unwilling to take that course, apparently because it
deems the cases so pressing and the issues so unsubstantial that the motion
should be summarily disposed of.

23

Second. The Court in denying leave to file states:

24

'We are satisfied that the tribunal sentencing these petitioners is not a tribunal
of the United States. The United States and other allied countries conquered
and now occupy and control Japan. General Douglas MacArthur has been
selected and is acting as the Supreme Commander for the Allied Powers. The
military tribunal sentencing these petitioners has been set up by General
MacArthur as the agent of the Allied Powers.

25

'Under the foregoing circumstances the courts of the United States have no
power or authority to review, to affirm, set aside or annul the judgments and
sentences imposed on these petitioners. * * *'

26

But that statement does not in my opinion adequately analyze the problem. The
formula which it evolves to dispose of the cases is indeed potentially
dangerous. It leaves practically no room for judicial scrutiny of this new type of
military tribunal which is evolving. It leaves the power of those tribunals
absolute. Prisone held under its mandates may have appeal to the conscience
or mercy of an executive; but they apparently have no appeal to law.

27

The fact that the tribunal has been set up by the Allied Powers should not of
itself preclude our inquiry. Our inquiry is directed not to the conduct of the
Allied Powers but to the conduct of our own officials. Our writ would run not to
an orfficial of an Allied Power but to our own official. We would want to know
not what authority our Allies had to do what they did but what authority our
officials had.

28

If an American General holds a prisoner, our process can reach him wherever
he is. To that extent at least the Constitution follows the flag. It is no defense

for him to say that the acts for the Allied Powers. He is an American citizen
who is performing functions for our government. It is our Constitution which
he supports and defends. If there is evasion or violation of its obligations, it is
no defense that he acts for another nation. There is at present no group or
confederation to which an official of this Nation owes a higher obligation than
he owes to us.
29

I assume that we have no authority to review the judgment of an international

tribunal. But if as a result of unlawful action, one of our Generals holds a
prisoner in his custody, the writ of habeas corpus can effect a release from that
custody. It is the historic function of the writ to examine into the cause of
restraint of liberty. We should not allow that inquiry to be thwarted merely
because the jailer acts not only for the United States but for other nations as
well.

30

Let me illustrate the gravity and seriousness of the conclusion of the Court.

31

(1) Suppose an American citizen collaborated with petitioners in plotting a war

against the United States. The laws of the United States provide severe
penalties for such conduct. May that citizen be tried and convicted by an
international tribunal and have no access to our courts to challenge the legality
of the action of our representatives on it? May he, in the face of the safeguards
which our Constitution provides even for traitors, have no protection against
American action against him?

32

(2) Suppose an American citizen on a visit to Japan during the occupation

commits murder, embezzlement, or the like. May he be tried by an international
tribunal and have no recourse to our courts to challenge its jurisdiction over
him?

33

(3) What about any other civilian so tried and convicted for such a crime
committed during the occupation?

34

These are increasingly important questions as collaboration among nations at

the international level continues. They pose questions for which there is no
precedent. But we sacrifice principle when we stop our inquiry once we
ascertain that the tribunal is international.

35

I cannot believe that we would adhere to that formula if these petitioners were
American citizens. I cannot believe we would adhere to it if this tribunal or
some other tribunal were trying American citizens for offenses committed

either before or during the occupation. In those cases we would, I feel, look
beyond the character of the tribunal to the persons being tried and the offenses
with which they were charged. We would ascertain whether, so far as American
participation is concerned, there was authority to try the defendants for the
precise crimes with which they are charged. That is what we should do here.
36

(1) General Douglas MacArthur is the Supreme Commander for the Allied
Powers. The Potsdam Declaration (July 26, 1945) provided for occupation of
Japan by the Allies. The Instrument of Surrender (September 2, 1945) accepted
the terms of the Potsdam Declaration. By the Moscow Agreement (December
27, 1945) the Supreme Commander was recognized as 'the sole executive
authority for the Allied Powers in Japan.' It also established a Far Eastern
Commission composed of representatives of eleven nations. It was vested with
broad powers (a) to formulate policies, principles and standards y which Japan
will fulfill its obligations under the Terms of Surrender and (b) to review
directives issued to the Supreme Commander or any action taken by him
involving policy decisions within its jurisdiction. All directives embodying
policy decisions of the Commission are to be prepared by the United States and
it transmits them to the Supreme Commander.4 And the Commission is
enjoined to respect 'the chain of command from the United States Government
to the Supreme Commander and the Supreme Commander's command of
occupation forces.'

37

The war crimes policy of the Allied Powers as respects Japan seems to have
been first suggested in the Cairo Declaration5 (December 1, 1943). The
Potsdam Declaration promised that 'stern justice' would be meted out 'to all war
criminals.'

38

The Far Eastern Commission on April 3, 1946, adopted a policy decision which
defined 'war crimes' as including 'Planning, preparation, initiation or waging of
a war of aggression or a war in violation of international treaties, agreements
and assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing.' It provided that the Supreme
Commander for the Allied Powers should have power to appoint special
international military courts to try war criminals. Prior to this time the Supreme
Commander had constituted a court for that purpose and had appointed judges
from various nations to it. On receipt of the directive based on the
Commission's war crimes policy decision he provided a new court the one
before which petitioners were tried. To this court the Supreme Commander
appointed from names submitted by the respective nations eleven judgesone
each from the United States, China, United Kingdom, Russia, Australia,
Canada, France, The Netherlands, New Zealand, India, and the Philippines.

39

So I think there can be no serious doubt that, though the arrangement is in many
respects amorphous and though the tribunal is dominated by American
influence it is nonetheless international in character. But it should be noted that
the chain of command from the United States to the Supreme Commander is
unbroken. It is he who has custody of petitioners. It is through that chain of
command that the writ of habeas corpus can reach the Supreme Commander.

40

(2) The Constitution gives Congress the power to define and punish 'Offenses
against the Law of Nations * * *.' Art. I, 8, Cl. 10. It is argued that Congress
here has not made aggressive war a crime nor provided individual punishment
for waging it. It is therefore argued that these petitioners cannot be tried by
United States officials for any such crime. We do not need to consider a case
where the definition given by Congress conflicts with what a President does.
There is no conflict here. The grant of power to the Congress does not
necessarily preclude exercise of authority by the President. The Constitution
makes the President the 'Commander in Chief of the Army and Navy of the
United States * * *.' Art. II, 2. His power as such is vastly greater than that of
troop commander. He not only has full power to repel and defeat the enemy; he
has the power to occupy the conquered country, New Orleans v. Steamship
Co., 20 Wall. 387, 394, 22 L.Ed. 354, and to punish those enemies who
violated the law of war. Ex parte Quirin, supra, 317 U.S. at pages 28-29, 63
S.Ct. at pages 10-11, 87 L.Ed. 3; In re Yamashita, supra, 327 U.S. at pages 1011, 66 S.Ct. at page 345, 90 L.Ed. 499. We need not consider to what extent, if
any, the President, in providing that justice be meted out to a defeated enemy,
would have to follow as he did in Ex parte Quirin, supra, and In re Yamashita,
supra, the procedure that Congress had prescribed for such cases. Here the
President did not utilize the conventional military tribunals provided for by the
Articles of War. He did not act alone but only in conjunction with the Allied
Powers. This tribunal was an international one arranged for through negotiation
with the Allied Powers.

41

The President is the sole organ of the United States in the field of foreign
relations. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 318-321, 57
S.Ct. 216, 220-221, 81 L.Ed. 255. Agreements which he has made with our
Allies in furtherance of our war efforts have been legion. Whether they are wise
or unwise, necessary or improvident are political questions, not justiciable ones.
That is particularly true of questions relating to the commencement and conduct
of the war. Agreement with foreign nations for the punishment of war
criminals, insofar as it involves aliens who are the officials of the enemy or
members of its armed services, is a part of the prosecution of the war. It is a
furtherance of the hostilities directed to a dilution of enemy power and
involving retribution for wrongs done. It falls as clearly in the realm of political

decisions as all other aspects of military alliances in furtherance of the common

objective of victory. Cf. Georgia v. Stanton, 6 Wall, 50, 71, 18 L.Ed. 721.
42

After the escape of Napoleon from Elba where he had voluntarily retired, he
was by agreement among the Powers entrusted to the custody of Great Britain.
Then followed his banishment to St. Helena. I have no doubt that our President
could have done the same as respects these petitioners. Or he could have made
arrangements with other nations for their custody and detention. When the
President moves to make arrangements with other nations for their trial, he acts
in a political role on a military matter. His discretion cannot be reviewed by the
judiciary.

43

The political nature of the decision which brought these petitioners before the
International Military Tribunal is emphasized by the rulings which that tribunal
made. The Charter of the Tribunal was constituted by an order of the Supreme
Commander. It established the tribunal, determined its procedure, and
described its jurisdiction. It described the 'crimes' that came within the
jurisdiction of the tribunal6 and the standard of responsibility of the accused.7

44

Justice Pal of India who dissented from the judgments of conviction claimed
that the Allied Powers as victors did not have the legal right under international
law to treat petitioners as was criminals. He wrote at lenth, contending that the
Pact of Paris,8 46 Stat. 2343, to which Japan was a signatory, did not affect the
pre-existing legal position of war in international life.9 He rejected the
argument that international customary law had developed under the Pact,10 or
that there was individual responsibility for the waging of aggressive war even
assuming it to be a crime under international law.11

45

He called on the Tribunal to rule on these questions. He stated:

46

'We have been set up as an International Military Tribunal. The clear intention
is that we are to be 'a judicial tribunal' and not 'a manifestation of power.' The
intention is that we are to act as a court of law and act under international law.
We are to f nd out, by the application of the appropriate rules of international
law, whether the acts constitute any crime under the already existing law,
dehors the Declaration, the Agreement or, the Charter. Even if the Charter, the
Agreement or the Declaration schedules them as crimes, it would only be the
decision of the relevant authorities that they are crimes under the already
existing law. But the Tribunal must come to its own decision. It was never
intended to bind the Tribunal by the decision of these bodies, for otherwise the
Tribunal will not be a 'judicial tribunal' but a mere tool for the manifestation of

power.
47

'The so-called trial held according to the definition of crime now given by the
victors obliterates the centuries of civilization which stretch between us and the
summary slaying of the defeated in a war. A trial with law thus prescribed will
only be a sham employment of legal process for the satisfaction of a thirst for
revenge. It does not correspond to any idea of justice. Such a trial may justly
create the feeling that the setting up of a tribunal like the present is much more
a political than a legal affair, an essentially political objective having thus been
cloaked by a juridical appearance. Formalized vengeance can bring only an
ephemeral satisfaction, with every probability of ultimate regret; but
vindication of law through genuine legal process alone may contribute
substantially to the re-establishment of order and decency in international
relations.'

48

But the Tribunal, though expressing disagreement with Justice Pal on the
point,12 did not rule on the question. It ruled that 'the law of the Charter is
decisive and binding' upon it. It said:

49

'This is a special tribunal set up by the Supreme Commander under authority

conferred on him by the Allied Powers. It derives its jurisdiction from the
Charter. In this trial its members have no jurisdiction except such as is to be
found in the Charter. The Order of the Supreme Commander, which appointed
the members of the Tribunal, states: 'The responsibilities, powers, and duties of
the members of the Tribunal are set forth in the Charter thereof. * * *' In the
result, the members of the Tribunal, being otherwise wholly without power in
respect to the trial of the accused, have been empowered by the documents,
which constituted the Tribunal and appointed them as members, to try the
accused but subject always to the duty and responsibility of applying to the trial
the law set forth in the Charter.'

50

The President of the Tribunal, Sir William Flood Webb of Australia, in a

separate opinion stated:

51

'The Charter is binding as it is International Law, the Potsdam Declaration and

the Instrument of Surrender put into operation by the martial law of the
Supreme Commander of the Allied Powers in occupation of Japan.

52

'The Supreme Commander stated in his proclamation of the Tribunal and

Charterthe martial law referred tothat he acted in order to implement the
term of surrender that stern justice should be meted out to war criminals.

53

***

54

'Under International Law belligerents have the right to punish during the war
such war criminals as fall into their hands. The right accrues after occupation of
the enemy territory. As a condition of the armistice a victorious belligerent may
require the defeated state to hand over persons accused of war crimes. The
Potsdam Declaration and the Instrument of Surrender contemplate the exercise
of this right. But guilt must be ascertained before punishment is imposed; hence
the provision for trials.

55

'The occupying belligerent may set up military courts to try persons accused of
war crimes; and to assure a fair trial may provide among other things for
civilian judges, the right of appeal, and publicity. (Oppenheim on International
Law, 6th Edn. Vol. II, p. 456.)'13

56

The conclusion is therefore plain that the Tokyo Tribunal acted as an

instrument of military power of the Executive branch of government. It
responded to the will of the Supreme Commander as expressed in the military
order by which he constituted it. It took its law from its creator and did not act
as a free and independent tribunal to adjudge the rights of petitioners under
international law. As Justice Pal said, it did not therefore sit as a judicial
tribunal. It was solely an instrument of political power. Insofar as American
participation is concerned, there is no constitutional objection to that action.
For the capture and control of those who were responsible for the Pearl Harbor
incident was a political question on which the President as Commander-inChief, and as spokesman for the nation in foreign affairs, had the final say.

Article III 2, Cl. 2 reads as follows:

'In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.'

28 U.S.C. 2241(a), 28 U.S.C.A. 2241(a), provides:

'Writs of habeas corpus may be granted by the Supreme Court, any justice
thereof, the district courts and any circuit judge within their respective
jurisdictions. The order of a circuit judge shall be entered in the records of the
district court of the district wherein the restraint complained of is had.'

Cases of this sort are beginning to appear. In the Matter of Bush, 336 U.S. 971,
69 S.Ct. 943, is such a case. Petitioner was a civilian employee of the War
Department from Feb. 19, 1946 to Dec. 28, 1947 and was stationed in Japan for
most of that period. He terminated his employment and returned to this country.
Thereafter, he was en route to Siam when his plane landed in Japan. He was
arrested and tried by a General Provost Court sitting in Japan for trading
American goods to a Japanese for certain emoluments. He was convicted and
sentenced to one year imprisonment and fined 75,000 yen. On May 9, 1949, we
denied his motion for leave to file a petition for habeas corpus 'without
prejudice to the right to apply to any appropriate court that may have
jurisdiction.'
For a sowewhat comparable case from Germany see Bird v. Johnson, 336 U.S.
950, 69 S.Ct. 877, where we denied motions for leave to file petitions for writs
of habeas corpus on April 18, 1949.

The Moscow Agreement also provided:

'The United States Government may issue interim directives to the Supreme
Commander pending action by the Commission whenever urgent matters arise
not covered by policies already formulated by the Commission; provided that
any directives dealing with fundamental changes in the Japanese constitutional
structure or in the regime of control, or dealing with a change in the Japanese
Government as a whole will be issued only following consultation and
following the attainment of agreement in the Far Eastern Commission.'

'The Three Great Allies are fighting this war to restrain and punish the
aggression of Japan.'

Article 5 provided:
'The Tribunal shall have the power to try and punish Far Eastern war criminals
who as individuals or as members of organizations are charged with offenses
which include Crimes against Peace. The following acts, or any of them, are
crimes coming within the jurisdiction of the Tribunal for which there shall be
individual responsibility:
'a. Crimes against Peace. Namely, the planning, preparation, initiation or
waging of a declared or undeclared war of aggression, or a war in violation of
international law, treaties, agreements or assurances, or participation in a
common plan or conspiracy for the accomplishment of any of the foregoing;
'b. Conventional War Crimes. Namely, violations of the laws or customs of
war;

'c. Crimes against Humanity. Namely, murder, extermination, enslavement,

deportation, and other inhumane acts committed before or during the war, or
persecutions on political or racial grounds in execution of or in connection with
any crime within the jurisdiction of the Tribunal, whether or not in violation of
the domestic law of the country where perpetrated. Leaders, organizers,
instigators and accomplices participating in the formulation or execution of a
common plan or conspiracy to commit any of the foregoing crimes are
responsible for all acts performed by any person in execution of such plan.'
Petitioners Dohihara, Hirota, Kido, Oka, Sato, Shimada and Togo were found
guilty of waging a war of aggression and of conspiring to do so. Petitioners
Dohihara, Hirota and Togo were found guilty of conventional war crimes and
crimes against humanity.
7

Article 6 provided:
'Neither the official position, at any time, of an accused, nor the fact that an
accused acted pursuant to order of his government or of a superior shall, of
itself, be sufficient to free such accused from responsibility for any crime with
which he is charged, but such circumstances may be considered in mitigation of
punishment if the Tribunal determines that justice so requires.'

This treaty provided in part:

'Persuaded that the time has come when a frank renunciation of war as an
instrument of national policy should be made to the end that the peaceful and
friendly relations now existing between their peoples may be perpetuated;
***
'Article I
'The High Contracting Parties solemnly delcare in the names of their respective
peoples that they condemn recourse to war for the solution of international
controversies, and renounce it as an instrument of national policy in their
relations with one another.
'Article II
'The High Contracting Parties agree that the settlement or solution of all
disputes or conflicts of whatever nature or of whatever origin they may be,
which may arise among them, shall never be sought except by pacific means.'
See Miller, The Peace Pact of Paris (1928).

For discussions pro and con on this issue see Glueck, War Criminals (1944);
Glueck, The Nuremberg Trial and Aggressive War (1946).

10

In this connection he said:

'I may mention here in passing that within four years of the conclusion of the
Pact there occurred three instances of recourse to force on a large scale on the
part of the signatories of the Pact. In 1929 Soviet Russia conducted hostilities
against China in connection with the dispute concerning the Chinese Eastern
Railway. The occupation of Manchuria by Japan in 1931 and 1932 followed.
Then there was the invasion of the Colombian Province of Leticia by Peru in
1932. Thereafter, we had the invasion of Abyssinia by Italy in 1935 and of
Finland by Russia in 1939. Of course there was also the invasion of China by
Japan in 1937.'
Some of the petitioners, notably Dohihara, Hirota, Kido and Togo were found
guilty on charges which involved waging of aggressive was prior to Pearl
Harbor, e. g., in connection with the Manchurian episode.

11

He went so far as to say:

'In my view if the alleged acts do not constitute any crime under the existing
international law, the trial and punishment of the authors thereof with a new
definition of crime given by the victor would make it a 'war crime' on his part.
The prisoners are to be dealt with according to the rules and regulations of
international law and not according to what the victor chooses to name as
international law.'

12

It stated in this connection that it was in complete accord with the following
passages from the opinion of the Nuremberg Tribunal, Nazi Conspiracy and
Aggression (1947), pp. 48, 50, 53, 49, 53-54:
'The Charter is not an arbitrary exercise of power on the part of the victorious
nations, but in view of the Tribunal, as will be shown, it is the expression of
international law existing at the time of its creation;
***
'The question is, what was the legal effect of this pact? [Pact of Paris.] The
nations who signed the pact or adhered to it unconditionally condemned
recourse to war for the future as an instrument of policy, and expressly
renounced it. After the signing of the pact, any nation resorting to war as an
instrument of national policy breaks the pact. In the opinion of the Tribunal, the
solemn renunciation of war as an instrument of national policy necessarily

involves the proposition that such a war is illegal in international law; and that
those who plan and wage such a war, with its inevitable and terrible
consequences, are committing a crime in so doing.
***
'The principle of international law, which under certain circumstances, protects
the representatives of a State, cannot be applied to acts which are condemned as
criminal by international law. The authors of these acts cannot shelter
themselves behind their official position in order to be freed from punishment
in appropriate proceedings.
***
'* * * the maxim nullum crimen sine lege is not a limitation of sovereignty, but
is in general a principle of justice. To assert that it is unjust to punish those who
in defiance of treaties and assurances have attacked neighboring states without
warning is obviously untrue, for in such circumstances the attacker must know
that he is doing wrong, and so far from it being unjust to punish him, it would
be unjust if his wrong were allowed to go unpunished.
***
'The Charter specifically provides in Article 8:
"The fact that the defendant acted pursuant to order of his Government or of a
superior shall not free him from responsibility, but may be considered in
mitigation of punishment.'
'The provisions of this Article are in conformity with the law of all nations. * *
* The true test, which is found in varying degrees in the criminal law of most
nations, is not the existence of the order, but whether moral choice was in fact
possible.'
13

He went on to state his view that the waging of aggressive war was a crime
under international law and that individual responsibility attached thereto.
Justice Jaranilla of the Philippines filed a separate concurring opinion to the
same effect. Justice Bernard of France, though dissenting from the majority
because of certain rulings on vicarious criminal responsibility and because he
thought the trial was not fair, agreed that the waging of aggressive war was a
crime.